People v. Reyes CA6

Filed 5/10/16 P. v. Reyes CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041629 (San Benito County Plaintiff and Respondent, Super. Ct. No. CR1000425)

v.

MICHAEL REYES,

Defendant and Appellant.

STATEMENT OF THE CASE A jury convicted defendant Michael Reyes of one count of forcible sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1); count 2),1 five counts of forcible lewd conduct on a child under the age of 14 (§ 288, subd. (b)(1); counts 3, 5, 7, 9, and 11), 12 counts of forcible rape (§ 261, subd. (a)(2); counts 4, 6, 8, 10, 13, 14, 16, 17, 19, 21, 24, and 26), three counts of forcible oral copulation (§ 288a, subd. (c)(2); counts 12, 15, and 23), four counts of lewd conduct on a 14-year-old or 15-year-old child (§ 288, subd. (c)(1); counts 18, 20, 22, and 25), and two counts of aggravated sexual assault on a child (§ 269, subds. (a)(1) & (a)(5); counts 27 and 28). The trial court sentenced defendant to a term of 30 years to life plus a consecutive term of 95 years 8 months.

1 Subsequent unspecified statutory references are to the Penal Code.

Defendant appealed from the judgment of conviction. This court concluded that there was insufficient evidence of force or duress to support counts 2-17, 19, 21, 23, 24, and 26-28. This court additionally concluded that defendant was denied his right to discharge retained counsel at the sentencing hearing. Given these conclusions, this court issued the following disposition order: “The judgment is reversed. We remand to the trial court with the following directions: (1) strike the aggravated sexual assault on a child convictions in counts 27 and 28; (2) reduce the forcible lewd conduct convictions in counts 3, 5, 7, 9 and 11 to non-forcible lewd conduct in violation of section 288, subdivision (a); (3) reduce the forcible rape convictions in counts 4, 6, 8, 10, 13, 14, 16, 17, 19, 21, and 24 to unlawful sexual intercourse with a minor in violation of section 261.5, subdivision (d); (4) reduce the forcible rape conviction in count 26 to unlawful sexual intercourse with a minor in violation of section 261.5, subdivision (c); (5) reduce the forcible sexual penetration by a foreign object conviction in count 2 to non-forcible sexual penetration by a foreign object in violation of section 289, subdivision (j); (6) reduce the forcible oral copulation convictions in counts 12, 15, and 23 to non-forcible oral copulation in violation of section 288a, subdivision (b)(2); (7) conduct a new sentencing hearing for all counts with defendant afforded the opportunity to be represented by a new attorney.” (People v. Reyes (Oct. 28, 2013, H036867) [nonpub. opn.].) On remand, the trial court held a resentencing hearing and sentenced defendant to a total prison term of 30 years 4 months. The trial court calculated this sentence in the following manner: eight years for the section 289, subdivision (j) conviction in count 2; 11 consecutive one-year terms for the section 261.5, subdivision (d) convictions in counts 4, 6, 8, 10, 13, 14, 16, 17, 19, 21, and 24; four consecutive two-year terms for the section 288, subdivision (a) convictions counts 5, 7, 9 and 11; three consecutive eight-month terms for the section 288a, subdivision (b)(2) convictions in counts 12, 15, and 23; a